In re Ryan, No. 10-04-00128-CR (TX 10/20/2004)

• Decision Date: 20 October 2004
• Docket Number: No. 10-04-00128-CR.,10-04-00128-CR.
• Parties: IN RE CHARLES L. RYAN
• Court: Texas Supreme Court

Page 1

Unpublished Opinion

IN RE CHARLES L. RYAN

No. 10-04-00128-CR.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed October 20, 2004.

Do Not Publish.

Original Proceeding

Writ conditionally issued.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

PER CURIAM.

Charles Larry Ryan seeks a writ of mandamus to compel the State to comply with the Interstate Agreement on Detainers (IAD).TEX. CODE CRIM. PROC. ANN. art 51.14 (Vernon 1979).

The State, the real party in interest, has responded with copies of a motion and order dismissing the trial court case, No. M200300270, styled The State of Texas v. Charles Larry Ryan.The response-letter states that the dismissal is "in accordance with Title 18,United States Code, Appendix 2, Interstate Agreement on Detainers."The accompanying order is, however, "without prejudice."

The IAD requires that a dismissal that falls within its parameters be "with prejudice."Thus, Ryan is entitled to the relief he seeks.We will conditionally issue the writ.

Respondent must enter an order dismissing the trial court case "with prejudice."If an amended order is not filed with the clerk of this court within fourteen days after the date of this opinion, the Clerk shall issue the writ.

DISSENTING OPINION

TOM GRAY, Chief Justice.

This is an original proceeding for a writ of mandamus.The "let's just do it" attitude of the majority's opinion evidences a total lack of regard for the actions required of a relator in order to obtain a writ or of a criminal defendant to enjoy the benefits of the statute regulating the transfer of prisoners among jurisdictions.The majority decides the proceeding based on events that occurred after the petition was filed, on documents that are not in the record, and on issues that Relator has not briefed, and misconstrues or misapplies the statute.It is hard to imagine how the majority could make more errors in a single proceeding.

Relator, Charles L. Ryan, has filed a Petition for Expeditious Mandamus, in which he seeks a writ compelling Respondent, Hon. William R. Anderson, Jr., Judge of Johnson County Court at LawNo. 2, to dismiss a warrant, as Relator argues, pursuant to the Interstate Agreement on Detainers Act.¹SeeInterstate Agreement on Detainers Act ("IADA"), 18 U.S.C. app.(2000), 18 U.S.C.A. app. 2 (2000)(federal IADA);see alsoTEX. CODE CRIM. PROC. ANN. Art. 51.14(Vernon 1979)(Tex. IADA).²The Interstate Agreement on Detainers ("IAD") is an "interstate compact" that "establish[es] procedures for resolution of one State's outstanding charges against a prisoner of another State."Alabama v. Bozeman,533 U.S. 146, 148(2001);New York v. Hill,528 U.S. 110, 111(2000);seeState v. Williams,938 S.W.2d 456, 460(Tex. Crim. App.1997);State v. Sephus,32 S.W.3d 369, 375(Tex. App.—Waco2000, pet. ref'd).

The majority's application of the law to the facts of this case, in its entirety, is as follows:

The IAD requires that a dismissal that falls within its parameters be "with prejudice."Thus, Ryan is entitled to the relief he seeks.

(In re Ryan,No. 10-04-00128-CR, slip op. at [1](Tex. App.—Waco Oct. 20, 2004, orig. proceeding [no mand. h.])(majority op.)(not designated for publication));seeIADA, 18 U.S.C. app. § 2, arts. III(d), IV(e), V(c);see alsoTEX. CODE CRIM. PROC. ANN. Art. 51.14, arts. IV(e), V(c).³

I respectfully dissent.Like a first-year law student, the majority leaps directly to the issue of the remedy, without considering the necessary prerequisite issues of whether Relator's case "falls within [the] parameters" of the IADA, or how Relator is "entitled" to relief.(Cf. slip op. at [1].)Here, those prerequisite issues comprise all of the core issues of mandamus practice, including Relator's failure to serve the parties, Relator's failure to file a record, Relator's failure to present his request to Respondent, the absence of any abuse of discretion by Respondent, and the "fundamental tenet" of mandamus practice—Relator's adequate remedies at law; as well as issues of IADA practice.SeeWalker v. Packer,827 S.W.2d 833, 840(Tex.1992)(orig. proceeding)(quotingHolloway v. Fifth Court of Appeals,767 S.W.2d 680, 684(Tex.1989)(orig. proceeding)).⁴

I.WE SHOULD STRIKE OR DISMISS THE PETITION.

In the first place, we should strike or dismiss Relator's petition.It does not show that Relator served Real Party in Interest, namely the State of Texas in the person of Bill Moore, County Attorney of Johnson County.On June 21, 2004, this Court's Clerk notified Relator that the petition "does not conform with the requirements of the Rules of Appellate Procedure because it does not contain a certificate of service indicating that relator has provided a copy of the petition to the respondent or the real party in interest"(citingTEX. R. APP. P. 9.5).The Clerk further notified Relator, "If relator fails to correct these deficiencies within 10 days after the date of this letter, the petition will be struck"(citingTEX. R. APP. P. 9.4(i)).On July 9, 2004, Relator tendered a Certificate of Service to the effect that he had served Respondent, but did not certify that he had served Real Party in Interest.Nor does Relator suggest that he served his untimely Appendix even on Respondent.We have allowed Relator an adequate opportunity to correct those deficiencies.Accordingly, we should strike the petition.SeeTEX. R. APP. P. 9.4(i), 9.5;In re Galer,No. 10-04-00134-CR, 2004 Tex. App. LEXIS 7062(Tex. App.—Waco Aug. 4, 2004, orig. proceeding)(mem. op.)(per curiam)(striking petition);In re Thomas, No. 10-03-164-CV, 2003 Tex. App. LEXIS 4805, at *1(Tex. App.—Waco May 29, 2003, orig. proceeding)(mem. op.)(per curiam)(striking petition);but seeIn re Arledge, No. 10-02-072-CR, slip op.at 2(Tex. App.—Waco Apr. 24, 2002, orig. proceeding)(not designated for publication)(per curiam)(denying petition);In re Hensler,27 S.W.3d 719, 720(Tex. App.—Waco 2000, orig. proceeding)(per curiam)(denying petition).

In the alternative, we should dismiss the petition.SeeIn re State,26 S.W.3d 759, 760(Tex. App.—Waco 2000, orig. proceeding)(Gray, J., dissenting).

II.WE SHOULD DENY THE PETITION.

In the alternative, we should deny the petition.Relator failed to comply with both procedural and substantive requirements of mandamus law.A relator is not eligible for a writ of mandamus unless he or she satisfies the procedural and substantive requirements for the writ, "no matter how much his situation might tug at judicial heartstrings."De Leon v. Aguilar,127 S.W.3d 1, 6(Tex. Crim. App.2004)(orig. proceeding).

The courts of appeals are authorized to issue writs of mandamus.TEX. CONST. art. V, § 6(a);TEX. GOV'T CODE ANN. § 22.221(a)-(b)(Vernon 2004)."The writ of mandamus is `[a] writ issued by a superior court to compel a lower court or government officer to perform mandatory or purely ministerial duties correctly."In re Chu,134 S.W.3d 459, 461(Tex. App.—Waco 2004, orig. proceeding)(quoting BLACK'S LAW DICTIONARY 973 (7th ed. 1999));seeBLACK'S LAW DICTIONARY 980 (8th ed. 2004).

Yet "mandamus is an extraordinary remedy."De Leon,127 S.W.3d at 6."As the name implies, extraordinary writs issue `only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.'"Holloway,767 S.W.2d at 684(quoting [James B.] Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas, in Appellate Procedure in Texas [3, at]§ 1.4[1][b]([Orville C. Walker ed.,]2d ed. 1979))(bracketed "[1][b]" in orig.).Thus mandamus is "to be used sparingly."Guerra v. Garza,987 S.W.2d 593, 594(Tex. Crim. App.1999)(orig. proceeding).The issuance of the writ of mandamus "is never a matter of right but rests in the sound discretion of the Court."Smith v. Gohmert,962 S.W.2d 590, 592(Tex. Crim. App.1998)(orig. proceeding).Courts thus take a "cautious view of the mandamus remedy."State ex rel. Sutton v. Bage,822 S.W.2d 55, 56(Tex. Crim. App.1992)(orig. proceeding).

II.A.Relator fails to comply with procedural mandamus requirements.

Relator fails to comply with several of the procedural requirements for the issuance of the writ of mandamus.⁵Besides the failings noted above that call for denial, (seesupraPart I;Arledge, No. 10-02-072-CR, slip op.at 2;Hensler,27 S.W.3d at 720), Appellant fails to file a record, an Appendix, or affidavits.

II.A. 1.Relator fails to present a record.

Relator has failed to provide the Court with a record sufficient to establish his right to mandamus relief."As the parties seeking relief, [relators] ha[ve] the burden of providing th[e]Court with a sufficient record to establish their right to mandamus relief."Walker,827 S.W.2d at 837;accordTransAmerican Natural Gas Corp. v. Flores,870 S.W.2d 10, 11(Tex.1994)(orig. proceeding);In re Mendoza,131 S.W.3d 167, 168(Tex. App.—San Antonio 2004, orig. proceeding);In re Davidson, No. 07-04-0040-CV, 2004 Tex. App. LEXIS 1672, at *1-*2(Tex. App.—Amarillo Feb. 19, 2004, orig. proceeding)(underlying criminal case);In re Villarreal,96 S.W.3d 708, 711(Tex. App.—Amarillo 2003, orig. proceeding)(underlying criminal case).Accordingly, we should deny the petition.

II.A. 1. a. Relator fails to file a record.

First, Relator has failed to provide the Court with a record, strictly speaking, at all.The Texas Rules of Appellate Procedure provide that "Relator must file with the petition . . . a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding," which constitutes the record.TEX. R. APP. P. 52.7(a)."[I]t is clear that a court of appeals may not grant mandamus relief when the petition and record require the court to speculate."In re Cap Rock Elec. Coop., Inc.,35 S.W.3d 222, 226(Tex....